The DNA Tests That Came Too Late to Save Two Men

Percell Warren and Nathaniel Epps died while fighting a rape conviction — but their battle still goes on.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system. An audio version of Case in Point is broadcast with The Takeaway, a public radio show from WNYC, Public Radio International, The New York Times, and WGBH-Boston Public Radio.

Nathaniel Epps, 66, died in a Virginia prison earlier this month, one of slightly more than 100 inmates to die in custody in the state this year. But he is more than just another corrections department statistic. At the time of his death from liver cancer that went undiagnosed until a week before he died, Epps and his attorneys were fighting with state attorneys over recent DNA testing. The results called into question the 1996 rape conviction that had sent him to prison in the first place.

In “Case in Point,” Andrew Cohen examines a single case or character that sheds light on the criminal justice system.

Epps was not the first person to die in prison while battling prosecutors after DNA appeared to offer exonerating evidence. He wasn’t even the first person in this case to die in prison while fighting with prosecutors over DNA evidence that might prove his innocence. His co-defendant and brother-in-law, Percell Warren, died of lung cancer in 2012 while waiting for the courts to order the testing. For both men, the test results came too late. Whether the results were also too little is a question the state’s courts still could answer for the families the men left behind.

Epps and Warren were accused in February 1996 of raping a Norfolk, Va., woman identified in court records only as J.G. Two men had broken into her apartment where she lived with her young daughter. The men raped her and beat her bloody. Neighbors who heard her screams called police.

When an officer showed up, the attackers fled out a window. J.G., who is white, told the police that she believed her rapists were two black males in their mid-20s. Two men, 28 and 31 years old, were immediately apprehended by the police and brought before J.G. as she lay in an ambulance. She said they were not her assailants. The police found no fingerprints in her apartment other than the victim’s. At the time, there was some DNA evidence but it was not deemed worthy of testing with the available technology.

J.G.’s ex-boyfriend was a mailman, and as he went about his route, he began offering a reward for information about the assault. One man, Ernest Brazell, said he had seen Epps and Warren running from the crime scene and overheard them bragging to each other about the rape. Epps and Warren, who lived near the victim, became prime suspects. Warren was 39 years old. Epps was 45.

J.G. identified Epps and Warren from a lineup — after J.G.’s ex told her that Epps and Warren were her rapists — and the men were promptly charged with rape and tried separately. At both trials, prosecutors relied on J.G.’s identification. She told jurors that she had jumped to the conclusion that the men were in their early 20s under pressure from police to come up with a quick description. Crucially, prosecutors in each trial argued that both defendants had raped J.G. Also important was the fact that J.G. had not been sexually active for at least eight months before she was raped.

Without any physical evidence linking either man to the crime, prosecutors also relied heavily on the testimony of Brazell, who told jurors that he did not take the reward money but came forward because he believed the attack was wrong. Brazell came to the case with credibility problems — four prior felony convictions and a dozen misdemeanor convictions — and his testimony was inconsistent.

Brazell told jurors it was not raining the night J.G. was raped. Other witnesses said it had been pouring. Brazell’s timeline was also off. He told jurors he had seen Epps and Warren running from J.G.’s apartment an hour after they would have done so. He told jurors in the Warren case that Warren bragged about the rape; he told jurors in the Epps case that Epps had bragged. Brazell died in April 2013.

The men denied involvement and both had offered alibis. But it didn’t take long for jurors to convict them. Epps received a sentence of 153 years. Warren got 160 years. And there they sat for 17 years, as their various claims for relief were denied by state and federal judges.

In 2013, however, after Warren died, the results of advanced DNA testing changed the dynamic of the case.

Results revealed that sperm recovered from the crotch of the jeans J.G. put on right after the rape came from at least one other man. The testing excluded Warren. But it was a bit more ambiguous when it came to Epps. Some of the material clearly was not his. Some of it was simply too small a sample to be definitively compared to Epps' DNA. Either way, it threw the state’s theory into question: If two men had raped J.G., defense attorneys said there now was doubt about Warren and Epps’ convictions.

Epps filed court papers arguing the testing exonerated him. At the same time, his lawyers asked for even more sophisticated testing, which the courts granted. In 2014, new results showed conclusively the presence of sperm from someone other than either Epps or Warren. (It also didn’t come from J.G.’s ex-boyfriend.) A year later, testing done on a hair sample taken from J.G.’s bedspread showed it came from a black person who was not Epps, Warren, or the ex-boyfriend.

Three months ago, in June, Epps’ lawyers asked again for a finding that their client was wrongfully convicted.

The state responded last month, saying the DNA argument was speculative because there was so little DNA — so-called trace DNA — available for testing. Swabs taken from J.G.’s body right after the rape did not contain sperm, making it unlikely that anything made it onto the jeans, the state argued. They posited that it could have come from a male who “handled” the jeans, or an intimate partner. But mostly, state attorneys didn’t try to solve the mystery behind the unidentified DNA. They just argued around it.

J.G. had positively identified Epps, and jurors knew about Brazell’s long criminal history to weigh his credibility, prosecutors said. Epps had a duty under Virginia law to show that “no rational juror would convict beyond a reasonable doubt when his new evidence is considered in light of the record,” prosecutors asserted.

And then one month later, before the court could rule, Epps was dead.

The question of what a prisoner must show to demonstrate her or his “actual innocence” varies from state to state. The burden always is on the defendant to prove not only that the new evidence is compelling but that it would have changed the outcome of a trial. It is an understatement to say that law favors letting old convictions stay settled.

In this case, as in most cases like this, the question comes down to your own personal definition of “rational.” If a “rational” juror were skeptical of Brazell’s credibility and aware of new evidence questioning the reliability of cross-racial eyewitness identifications in police lineups, the new DNA evidence in this case seems compelling.

But if you are a “rational” juror who believes Brazell’s trial testimony and J.G.’s identification, then the newly-discovered DNA evidence can easily be explained away, as state attorneys suggest it should be. Under the law, a tie always goes to the state.

A spokesman for the Attorney General’s office told me the state now believes the whole matter is moot.

One of Epps’ lawyers, Olga Akselrod of the Innocence Project, said she intends to pursue the innocence claim on behalf of Epps’ family, which stood by him for the 20 years he was in prison. She should. The case files from the long-ago trials, which were never turned over to the defense, might support the narrative that prosecutors pitched to jurors two decades ago. Or they might not. They might show a secret deal between prosecutors and Brazell (there is no evidence of one now). They might show that police investigated other suspects. They might even address the mystery of the unidentified DNA. Finding answers to those questions will never be moot to the families of Epps and Warren, both of whom died before new technology was able to give them the clarity, and perhaps the freedom, they sought.

Supported by the Louis Lowenstein Award for Criminal Justice Commentary.